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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (Application) 197 of 2019· [2025] KECA 2208 (KLR)

Kanyi & another v Njoroge & another

Court of Appeal
11 December 2025
1,324 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an appeal that dies with a party can be revived if the estate's representative explains the delay in substitution.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Ali-Aroni, JA) on a notice of motion dated 31st July 2025 by Anastacia Wanjiru Mwangi, administrator of the estates of the two deceased appellants, James Mwangi Kanyi and Zelipha Wambui Kanyi, brought under rules 4 and 102 of the Court of Appeal Rules, 2022. She sought enlargement of time to substitute the deceased appellants with herself and revival of the appeal, which concerns proprietary rights to L.R. Ruguru/Kiamariga/1876. The 1st appellant died on 30th December 2021; the 2nd appellant, aged 97, continued the appeal and filed submissions on 11th May 2023 before her death in July 2024. Both appeals abated by operation of law after twelve months elapsed without substitution. The respondent filed no response despite service. The court framed two issues: whether to extend time for substitution and whether to revive the appeal. Relying on Rule 102 and its prior decisions in Resma Commercial Agencies v Ngata, Njoroge v Kamau and Ngari v Murithi, the court held that no enlargement of time is needed once an appeal has abated; the only requirement is that the legal representative demonstrate sufficient cause for the delay. Finding the deaths and ensuing family confusion to be sufficient cause, and the application unopposed and unprejudicial, the court substituted the applicant for the deceased appellants, revived the appeal, and made no order for costs.

Key legal issues

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01

Whether enlargement of time is necessary for substitution after abatement

Holding

Not necessary; Rule 102 has a built-in mechanism and the only requirement is sufficient cause for the delay.

Reasoning

The court relied on Rule 102 of the Court of Appeal Rules, 2022 and its prior decisions holding that the rule itself governs abatement and revival. Where an appeal abates after 12 months from death, the applicant need only demonstrate sufficient cause for failing to substitute within that period; no separate enlargement-of-time application is required.

p. 3
02

Whether the applicant demonstrated sufficient cause for revival of the abated appeal

Holding

Yes; the deaths of both appellants and the resulting family confusion constituted sufficient cause.

Reasoning

The applicant, administrator of both estates, explained that the 1st appellant died in December 2021, the 2nd appellant (aged 97) continued the appeal and filed submissions before dying in July 2024, and the family was thrown into confusion. The application was unopposed and no prejudice was shown, so the court found the reasons sufficient and ordered substitution and revival.

p. 3

Legal principles established

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  • Upon death of a party to an appeal, substitution must be sought within 12 months failing which the appeal abates; but an abated appeal may be revived if the legal representative proves sufficient cause for the delay.
  • There is no need to seek enlargement of time where an appeal has abated after 12 months; the only requirement is demonstration of sufficient cause for the delay in substitution.
  • Revival of an abated appeal is not automatic; the applicant must prove sufficient cause preventing continuation of the appeal.

Court orders

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  1. 1.The applicant, Anastacia Wanjiru Mwangi, is substituted in place of the deceased appellants
  2. 2.The appeal is revived
  3. 3.No order for costs

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 102(1), (2), (3) & (4)

Cases cited (3)

  • Resma Commercial Agencies vs. Ngata (Suing as the Legal Representative of the Estate of Leah Wangui Ngata - Deceased) & another
    (Civil Appeal (Application) 16 of 2019) [2025] KECA 1398 (KLR)

    Rule 102 has a built-in mechanism; abatement after 12 months; revival on proof of sufficient cause.

  • Njoroge & Another vs. Kamau (Deceased) & Another
    (Civil Appeal (Application) E051 of 2019) [2024] KECA 806 (KLR)

    Revival of an abated appeal cannot be allowed as of right; sufficient cause must be demonstrated.

  • Ngari vs. Murithi (Deceased) Substituted by Wanjira Ngari & Another
    (Civil Appeal (Application) 140 of 2018) [2025] KECA 358

    Rule 102(3); legal representative enjoined to substitute a deceased party where the cause survives.

Jurisdiction invoked
Rules 4, 102(1), (2), (3) & (4) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kanyi & another v Njoroge & another", Case Analysis (2025). Civil Appeal (Application) 197 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2208/eng@2025-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.